Last summer, facing a spike in the number of Central American migrants fleeing violence and poverty at the southern U.S. border, the Obama administration sped up deportation proceedings of asylum-seeking mothers and children and increased family detention capacity at the four main detention centers located in Pennsylvania, Texas, and New Mexico.
But now — after facing considerable public criticism from advocates, lawmakers, and detainees themselves — these centers may soon undergo changes to minimize the amount of time that mothers and children are kept in detention.
In response to the more than 68,541 unaccompanied migrant children and 68,445 family units comprised of migrant women and their children who entered the U.S. between October 2013 and September 2014, the Obama administration took an “aggressive deterrence strategy” that aims to dissuade would-be migrant border crossers. This strategy involves holding migrants in detention without giving them the option to pay bond. The message was made clear last year by President Obama: There would be no guarantee of legal status, and children would be sent back to their countries as soon as possible.
By Wednesday, it seemed clear that the White House was recalibrating its approach toward the prolonged detention of migrant women and children. In a press statement, Johnson announced that “the detention of families will be short-term in most cases.” Reforms include allowing migrants to pay bond to secure their release and ensuring their access to legal representation and other resources while in detention.
‘We must make substantial changes in our detention practices’
“I have reached the conclusion that we must make substantial changes in our detention practices with respect to families with children,” Johnson stated in the press statement. “In short, once a family has established eligibility for asylum or other relief under our laws, long-term detention is an inefficient use of our resources and should be discontinued.”
The administration will also evaluate detention practices to review the cases of families detained beyond 90 days; stop “invoking general deterrence as a factor in custody determinations in all cases involving families;” appoint an external advisory committee; and ensure access to counsel and other services, while monitoring the overall conditions at the centers. Migrants will start being released with “an appropriate monetary bond or other condition of release to families at residential centers who are successful in stating a case of credible or reasonable fear of persecution in their home countries.”
In a press conference held hours after the release of Johnson’s statement, House Minority Whip Steny Hoyer (D-MD) — a leading advocate for comprehensive immigrant reform — praised the move as a “strong step in the right direction.”
However, Hoyer added, “Let me reiterate that I believe the best solution, the right one, is to close these centers.”
At the press conference, Rep. Zoe Lofgren (D-CA) also criticized Johnson for posing two alternatives for migrants who cross the border: “Jail, or you go to the bus stop and disappear. The secretary’s a smart guy. He knows those are not the two alternatives.”
Similarly, lawyers and advocates with on-the-ground insight are only cautiously optimistic about Johnson’s statement. Rachel B. Tiven, the executive director at Immigrant Justice Corps, a fellowship program that recruits the “best and brightest” high-achieving lawyers and graduates to offer immigration assistance to indigent community, told ThinkProgress that Johnson’s statement is “a good sign,” but that “just yesterday, the administration again referred to refugees as ‘illegal migrants who continue to be an enforcement priority.’”
“These are women, mothers and children who are fleeing incredible violence and gang rule,” Tiven said. “They are doing anything anybody would do in the same situation.”
Mothers and children have been held in family detention centers for as long as one year. One woman even attempted suicide after a judge issued a high $5,000 bond, a bond amount typically given to someone who’s considered a flight risk. Some women were reportedly punished after they went on a hunger strike to protest the food and the center’s deplorable conditions.
This week, during a visit to two detention centers in Texas, eight House Democrats — including Hoyer and Lofgren — had a chance to see the conditions firsthand. One member of Congress filmed hundreds of mothers and children chanting “queremos libertad,” or we want freedom. Another video showed a migrant mother crying as Rep. Luis Gutiérrez (D-IL) told a group of women and children that congressional members had signed a letter asking to shut down the facility.
The House Democrats who went on the trip include: Reps. Steny Hoyer (MD); Zoe Lofgren (CA); Joaquin Castro (TX); Judy Chu (CA); Raúl Grijalva (AZ); Luis V. Gutiérrez (IL); Sheila Jackson-Lee (TX); and Lucille Roybal-Allard (CA). They visited the Karnes County Residential Center in Karnes City, Texas on Monday and the South Texas Family Residential Center in Dilley, Texas on Tuesday.
Gutiérrez nearly broke down as he reflected on his trip to Dilley during an interview with The Rundown’s Jose Diaz Balart on Wednesday. “Heartbreaking. I had a 14-year-old, Jonathan, and I wanted to take him home with me, Jose. There are over 1,000 children, Jose, in that second facility where the video was being shot, over 1,000 children with their moms in that facility.”
“I met with people that have been in there for over a year,” Gutiérrez continued. “They have bonds — $10… $15… $20,000. They have already proven to a court that they have a credible fear and what that means is that they didn’t do anything wrong.”
The private prisons corporation Corrections Corporation of America operates the Dilley facility on behalf of U.S. Immigration and Customs Enforcement (ICE). Another private prison corporation, The GEO Group, owns and operates the Karnes County Residential Center.
‘This is not family camp’
Immigration advocates emphasize that keeping migrants family detention has deleterious effects on migrants’ physical and mental health. One Honduran migrant said to McClatchy, “You know, it’s not a typical jail like a jail where we’d be if we didn’t have children, but the way they treat us we feel like prisoners. It’s depressing. We’re afraid.” Advocates also state that holding migrants in a confined space is akin to jail-like conditions. One American Civil Liberties Union (ACLU) staff attorney compared detention centers to Japanese internment camps.
“The people are incarcerated and they cannot leave,” Tiven pointed out. “This is not family camp. Their lives are completely circumscribed. Everyone we’ve talked to reports that the food is inedible. I thought it was notable that Johnson referred to having seen the cafeteria, but he didn’t say whether he had the food.”
In February, a federal judge issued a preliminary injunction to stop the Obama administration from locking up asylum-seeking mothers and children solely for the purpose of deterring future border crossers from coming to the United States. According to the American Civil Liberties Union, that ruling meant the government “cannot continue to lock up families without an individualized determination that they pose a danger or flight risk that requires their detention.” And in April, McClatchy reported that “the administration … acknowledged that it’s fighting an uphill battle to keep its family detention centers open after the draft ruling concluded that the practice violates a 1997 settlement, Flores v. Meese, on child migrants.” That settlement “called for minors to be placed in the custody of family or a legal guardian when available. If a child is held, he or she must be housed in the least restrictive environment possible,” McClatchy indicated in a separate post.
In an effort to quickly expedite immigration cases from the surge, the administration placed many migrants on a “rocket docket,” a move that continues to frustrate lawyers and advocates who are scrambling to represent migrants in court. In one recent case, a federal court ordered a deported Guatemalan mother and daughter back to the United States. U.S. Court of Appeals Judge Theodore A. McKee wrote, “The Court would have granted Petitioners a stay of removal, but was informed that Petitioners were removed earlier today” ordering the U.S. government to intercept the pair when they land or to locate them in Guatemala and bring them back.
Tiven and her team are gearing up to provide assistance at the South Texas Detention facility in Karnes. Immigrant Justice Corps fellows will provide a near-continuous presence this summer, in two-week rotations to help immigrants fight deportation.
Because immigrants are not entitled to legal representatives, about 43 percent of immigration proceedings occur without a lawyer annually, a Study Group on Immigrant Representation report found. Another study published by the same group found that “people facing deportation in New York immigration courts with a lawyer are 500 percent as likely to win their cases as those without representation.” Nationally, immigrants with legal representation are more likely to stay in the country, and are also more likely to show up to court. And surveying a decade’s worth of court reports, a Transactional Records Access Clearinghouse report “found that whether or not an unaccompanied juvenile had an attorney was the single most important factor influencing the case’s outcome.”
“Without representation, [immigrants] are put on a fast-track to deportation,” Tiven explained. “The government is represented by a lawyer, but the individual is not. What happens is that a woman stands by herself at a table in a courtroom looking at a judge, usually on a video screen. On the other side, the U.S. government is represented by an attorney who says this person should be deported. Even though we know that 88 percent of the people who have come through these facilities meet the basic criteria for asylum, that woman is standing there alone without a lawyer and is likely to be deported. Immigrant Justice Corps was created to address the crisis in immigrant representation where so many people are deported without council, it was vital for us to participate in this really unprecedented situation on the border where people who are clearly eligible for asylum and eligible for refugee status instead are being summarily deported.”
Though the administration has promised changes, not much has changed for migrants who are already out of detention. Simon Sandoval Moshenberg, director of immigration advocacy at Legal Aid Justice Center in Falls Church, VA, noted that the use of alternative of detention (ATD) like ankle bracelets “has really exploded” in Virginia. He said, “It used to be that they would release you on parole and you would pretty much have to check in maybe every two weeks, every four weeks. And if you miss a check-in, they might put you on an ankle bracelet for a little while. I used to be able to get people off an ankle bracelet by sending a letter to the local ICE office saying that I represent this person. And they understand that if I represent this person, there’s a reason for that. The person is being represented by me because I determined they have a defense and they’re going to show up to court. And now, it’s extremely difficult to get ICE to take an ankle bracelet off a person.”
There has been a lessened flow of Latin American migrants at the southern border. Compared to the same time period during in 2014, there was about a 47 to 51 percent decrease in the number of border crossers. That’s because Mexico has been detaining and deporting Central Americans at record numbers. A new Washington Office On Latin America (WOLA) analysis found that Mexico detained more than 107,000 Central American migrants in 2014, but only “recognized 451 people as refugees,” a press release stated. That’s not to say that the violence in Central America has subsided.